cite as Kosrae State v. Mongkeya, (Kosrae, 1987)
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For the Plaintiff:           Robinhood Noda
State Prosecutor
Prosecutor's Office
Tofol, Kosrae 96944

For the Defendant:           Sidney Skilling
Assistant Public Defender
Public Defender's Office
Kosrae State 96944

[Kos.Ct pge 02]

     Defendant was convicted of Petty Larceny in violation of KC 13.409 and was sentenced on October 23, 1987 to five months imprisonment, with three of those months suspended on conditions. Three days later, on October 26,.1987, the defendant brought this motion for modification of sentence pursuant to the Kosrae State Court Rules of Criminal Procedure, Rule 35(b), asking that the defendant be released on parole. A hearing was held on November 9, 1987 wherein the Court asked the counsels to submit briefs on the issue of whether the Court has jurisdiction to modify the sentencing order in this case. After considering these briefs, the Court finds that it has jurisdiction to modify its sentencing order.


     The issue in this case is whether the doctrine of separation of powers acts to prohibit the judiciary .from modifying sentences in such a way as to have the effect of commuting the sentence. This doctrine establishes that when one branch is delegated a paticular power then only that branch, and no other, can exercise that power. 16 Am Jur 2d Constitutional Law §294.

     The problem in this case arises because the Kosrae Constitution delegates to the executive certain clemency powers, including the power to commute sentences. "The Governor may grant reprieves, commutations, and pardons after conviction, subject to regulation by law, except in cases of impeachment."

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Article V, §10. A commutation was defined in the Constitution Committee Notes as a substitution of a lighter sentence for a harsher one. (SCREP No. 1-83-10, ConCon Notes, p.6)

     The judiciary also has the option of reducing sentences. Rule 35 (b) of the Kosrae State Court Rules of Criminal Procedure gives the court the option of reducing a sentence if the motion is brought in a timely fashion. "The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal..." In this case, the rules of criminal procedure have the same effect as a law does. Kosrae Constitution, Article VI,§7. However, if the Rule is in conflict with the Constitution, the rule is invalid to the extent of the conflict. Kosrae Constitution, Article I.

     There is a second theory by which the judiciary can modify its sentences. Article VI, S 6 of the Kosrae Constitution provides that decisions of the State Court may be appealed to the appellate division of the Supreme Court of the Federated States of micronesia. The appellate division can then review the State Court's order and within the power of review is the power to modify. Thus, if a sentencing order is appealed, the appellate division has the option of modifying it.

     The question therefore is whether the doctrine of separation of powers reserves clemency powers to the executive

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exclusively and thereby makes Rule 35(b) invalid and cuts off the appellate division's powers to review sentencing orders. In order to resolve this question, we need to look to the legislative history of the Article V, § 10. According to the ConCon notes, the intent behind granting the governor clemency powers was to avoid the imposition of unfair sentences. "This executive authority to grant clemency is a function of the separation of powers between the executive and the judiciary to check sometimes mechanical jurisprudence which iniglit work harsh results in individual cases." SCREP No. 1-83-10 ConCon Notes p.6. This sentence gives us two clues as to the intent of the drafters in granting the governor clemency powers.

     First, the drafters recognized that the clemency powers were intended to be consistent with the doctrine of separation of powers. Since the judicial branch includes all appeals to the appellate division of the Federated States of Micronesia, if the governor was the only one who could modify a sentence so as to make it lighter, then the appellate division's power to review sentences would be restricted. This result would be inconsistent with the doctrine of separation of powers.

     Second, the goal of the drafters was to avoid mechanical sentences that are administered unfairly in particular cases. It would be most consistent with this goal, if the appellate division's powers of review were not restricted by the governor's

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clemency powers since it is part of the appellate division's responsibility to review sentencing orders when appropriate in order to make sure that the order is fair and constitutional. The appellate division has experience and is well suited to reviewing the fairness of sentencing orders.

     Further, since the ultimate goal of the drafters was to make sure that people are not sentenced unfairly, then it is consistent with this goal that the court that made the sentencing order also has the power to modify it. This is especially true when material evidence is presented after the sentence hearing that might have affected the original sentencing judge's order.


     It is also helpful to consider how other jurisdiction have viewed modifications of sentences. In Pohnpei, with similar constitutional language granting commutation powers to the governor, the court held that the Executive had the sole power to reduce a sentence, but that the court could have the power to commute a sentence if the Legislature so authorized. Pohnpei v. Hawk, 3 FSM Intr. 17 (Pon S. Ct. Tr. 1986)

     In the state courts of the United States, some courts have held that they can modify sentencing orders if the modification is done before the defendant begins to serve the sentence. The theory is that enforcement of the sentence is the responsibility of the Attorneys General and that the court loses jurisdiction

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over the defendant once he or she actually begins to serve the sentence. Prior to the implementation the court can modify its order. Other jurisdictions also require that the modification occur only during the same court term. 21 Am Tur. 2d Criminal Law, §580.

     In the United States federal courts, the court can modify its sentencing orders after they are imposed without any constitutional implications.

     "The judicial power and the executive power over sentences are readily distinguishable. To render judgment is a judicial function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua judgment. To reduce a sentence by amendment alters the terms of the judgment itself and is a judicial act as much as the imposition of the sentence in the first instance." United States v. Benz 282 US 304, 51 S. Ct 113, 75 L Ed 354 (1931)

     Thus, the theory in the federal courts is that the commutation powers are very different from modification powers, even though the effect on the defendant may be the same. This is because the commutation powers effect the enforcement of the judgment whereas the modification powers effect the judgment itself.

     It is reasonable for the State of Kosrae to adopt the theory of the United States federal courts that there is no conflict between commutation powers and modification powers.

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Although the United States Supreme Court decisions are not binding on this Court, in this situation where our system of government is modeled on the United States' system, it is logical for us to adopt their ideas regarding the functions of the three branches and their respective jurisdictions.

     Second, the Kosrae Constitution mandates that decisions of the court be consistent with the State traditions and customs, and the social and geographical configuration of the State. Article VI, § 9. On an island this small, it is reasonable that the judge who made the sentencing order should be the person who modifies the sentence. Otherwise, the defendant will have to petition the Governor, who previously has had no experience with the case, did not sit in on the trial, and does not know the circumstances, to become involved and consider the defendant's situation. There is potential for this process to become unnecessarily bureaucratic. In cases like this one, it will be far simplier and more expedient for the defendant to come back to judge who sentenced him, explain why the sentence should be modified and then leave the judge to consider those reasons.

     In addition by use of this theory, we can avoid conflict between the executive and the courts as both branches can assert their respective powers without encroaching upon each other. In the United States federal court system, which initially promulgated the version of Rule 35(b) that the Kosrae Court

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adopted, the court can only modify sentences for 120 days. This limit is a jurisdictional one, which means that after the time period has lapsed the court no longer has any authority to modify the sentences and the defendant must appeal to the executive's clemency powers. By adopting this procedure, the sentencing judge can still consider the sentence when new evidence is presented, the appellate division can modify the sentence if they Find it necessary and the governor can grant clemency if h e so desires.

     It should be noted, that this court will only modify sentences for good cause. Furthermore, where the evidence existed at the time of the sentencing hearing, but was not raised by the defense counsel, the court will be reluctant to change the original sentence. Motions for modification of sentence should only be made in those cases where evidence comes to light after the sentence ;-s imposed which makes the sentence seem unduly harsh or harsher than the defendant believes the sentencing judge meant to impose.

     In conclusion, the court finds that it does have jurisdiction to consider this motion for modification. The drafters of the Constitution did not intend for the governor's powers to commute a sentence to have the effect of preventing the court from modifying its own sentencing orders or to prevent the appellate division of the Federated States of Micronesia from

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reviewing a sentencing order of the State Court. Further, this Courts adopts the reasoning of the United States Supreme Court that there is a material difference between modifying a sentence and commuting a sentence in that modifying the sentencing order acts on the order itself while commuting a sentence acts on the enforcement of the sentencing order. Therefore, the doctrine of separation of powers does not prevent the court from modifying the sentence in this case, even though the effect of such a modification is the same as commuting the sentence.


                   DATE:                                         /s/            
                                        Harry H. Skilling
                                        Chief Justice
                                        Kosrae State Court